Police v Jim, Keat, Sim

Police v Jim, Keat, Sim - [2008] NSWLC 25 - NSWLC 2008 case summary — Zoe

[10]

Offender H- Offence JIN 35149730 / 1 Use False Instrument. S. 300 (2). The Good Guys. Seq. 2 Use False Instrument. S. 300 (2). Big W. Seq. 3 Use False Instrument. S. 300 (2). Dick Smith. Seq. 4 Use False Instrument. S. 300 (2). E.B. Games Seq. 5 Use False Instrument. S. 300 (2). Leading Edge Electronics. Seq. 6 Use False Instrument. S. 300 (2). Liquorland. Seq. 7 Participate in Criminal Group. S. 93T (1). Seq. 8 Use False Instrument. S. 300 (2). Australia Post. Seq. 9 Use False Instrument. S. 300 (2). Optus. Seq. 10 Use False Instrument. S. 300 (2). Coles Limited. Seq. 11 Use False Instrument. S. 300 (2). South Wagga Newsagency. Seq. 12 Use False Instrument. S. 300 (2). South Wagga Newsagency. Seq. 13 Use False Instrument. S. 300 (2). South Wagga Newsagency. Seq. 14 Have False Instrument with Intent. S. 302. Seq. 15 Have False Instrument with Intent. S. 302. Seq. 16 Have False Instrument with Intent. S. 302 Seq. 17 Have False Instrument with Intent. S. 302. Seq. 18 Have False Instrument with Intent. S. 302. Seq. 19 Have False Instrument with Intent. S. 302. Seq. 20 Goods in Custody. S. 527C(1)(a). $2,950.00. Seq. 21 Goods in Custody. S. 527C(1)(a). Samsung mobile phone KEAT H-35460876 Seq. 1 Participate in Criminal Group. S. 93T (1). Seq. 2 Have False Instrument with Intent. S. 302. Seq. 3 Goods in Custody. S. 527C(1)(a). $2,950.00. Seq. 4 Goods in Custody. S. 527C(1)(a). Coles Myer gift card and Nokia mobile phone. SIM H-35878243. Participate in Criminal Group. Seq. 1 S. 93T (1). Seq. 2 Use False Instrument. S. 300 (2). Big W. Seq. 3 Have False Instrument with Intent. S. 302. Seq. 4 Have False Instrument with Intent. S. 302. Seq. 5 Have False Instrument with Intent. S. 302. Seq. 6 Have False Instrument with Intent. S. 302. Seq. 7 Have False Instrument with Intent. S. 302. Seq. 8 Have False Instrument with Intent. S. 302. Seq. 9 Goods in Custody. S. 527C(1)(a). $2,950.00. Seq. 10 Goods in Custody. S. 527C(1)(a). Coles Myer Gift Card and Nokia mobile phone.

[79]

In Regina v Araya (2005) 155 A Crim R 555, Johnson J (Rothman and Simpson JJ agreeing), cited Regina v Harrower [1999] VSCA 182 with approval where it was said by Brooking JA at para 10: "This case shows how someone can systematically abuse the system by fraudulently obtaining a stock of these plastic cards which stand in the place of money, and shows some of the injurious consequences of that abuse. Generally speaking, the kind of conduct disclosed here must attract severe punishment". Johnson J said at [98]: "In my view, this statement has general application to the type of offence illustrated in the present case. Members of the community use credit cards for a very wide range of transactions conducted by telephone. The honest use of credit cards in this way is of great importance. In passing sentence for offences of the present type, general deterrence is an important factor. Further, where there is a pattern of fraudulent activity by an offender over an extended period using several credit cards and associated paraphernalia (such as fraudulent drivers' licences), specific deterrence is also an important consideration on sentence." The factual situation dealt with in Araya was somewhat different to the present but the matters of principle outlined are, in my view, of equal applicability. Deterrence To his Honour's comments in Araya (above) I add the following on the question of deterrence: One of the purposes of sentencing provided in Section 3A (b) of the Crimes (Sentencing Procedure) Act, 1999 is to prevent crime by deterring the offender and other persons from committing similar offences. Without enough willing recruits prepared to venture abroad to commit crime, even the most elaborate, sophisticated and cunning scheme (as this undoubtedly is) will find it difficult to operate. It is important to demonstrate to those so minded to join the scheme at whatever level, that condign punishment will be imposed upon those apprehended. These Offenders entered this country under the guise of tourists but with the intention and demonstrated, concerted ability to systematically steal from its people. The cost to the community of such a scheme - widespread, persistent and difficult to detect - cannot be understated. It is, therefore, crucial that a strong message be sent as widely as possible and, hopefully, to where the recruiting is done, that those apprehended will inevitably receive lengthy custodial penalties. Relevance of Possible Deportation. In Shrestha v The Queen (1991) 173 CLR 48 per Brennan and McHugh JJ., at [12] their Honours said judicial views as to the appropriatness of making eligibility-for-parole orders for persons facing deportation upon completion of a gaol sentence have differed. They noted a number of cases in New South Wales which held that many aspects of parole were not appropriate in the case of an offender who will be deported - see Reg. v. Chapman (1971) 1 NSWLR 544; Reg. v. Hull (1969) 90 WN (Pt.1) (N.S.W.) 488 and affirmed in Reg. v. Macaulay (1969) 90 WN (Pt.1) (N.S.W.) 682. But those cases did not lay down a general rule: see Reg. v. Riche (1977) 2 NSWLR 876 at 878. The rejection of the general rule, for which the earlier cases had been thought to be authority, that non-parole periods would not be specified in the case of an alien offender whose crime had rendered him liable to deportation was taken a step further in Regina v. Mesdaghi (1979) 2 NSWLR 68, where it was held that, under Section 4(3) of the (then) Parole of Prisoners Act 1966 (N.S.W.), the prospect of deportation is not an admissible or relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period (at p 71). In Regina v. Chi Sun Tsui (1985) 1 NSWLR 308, the same view as that expressed in Mesdaghi was embraced by reason of a provision in the Act which declared that parole should not be refused "by reason only that ... the prisoner may become liable to be deported". Street C.J. (at p 311) held that - " the prospect of deportation is not a relevant matter for consideration ..., in that it is the product of an entirely separate legislative and policy area of the regulation of our society". Foreign nationals

[95]

Special Circumstances I turn to consider the question of "special circumstances". The finding of special circumstances is a discretionary finding of fact (see Regina v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718. Merely because there is present a circumstance which is capable of constituting "special circumstances" does not mean that a sentencing judge is obliged to vary the statutory proportion: Regina v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: Regina v Nimmo [2005] NSWCCA 295. In Fidow Spigelman CJ said at [20]-[22]: "There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament's intention that the statutory proportion apply unless 'special circumstances' exist that justify departure from it, is not being carried out. The issue of special circumstances often arises in circumstances where there are cumulative terms of imprisonment and sentencers should always have regard to the outcome of any such accumulation. Indeed, it is well established that accumulation of sentences can itself constitute special circumstances: Regina v Simpson (1992) 61 A Crim R 58; Regina v Close (1992) 31 NSWLR 743; Regina v Clissold [2002] NSWCCA 356 and Regina v Ibrahim [2005] NSWCCA 43. However, there does not exist, at common law, a proposition to the effect that accumulation of sentences must automatically give rise to a finding that special circumstances exist: R v Ibrahim (supra).

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